Van Wagner Boston, LLC v. Davey
2014 U.S. App. LEXIS 20065
1st Cir.2014Background
- Massachusetts regulates outdoor advertising via a 2012 licensing/permit regime administered by the Director of the Office of Outdoor Advertising.
- The scheme requires most advertisers to obtain licenses and per-sign permits, with annual renewals and broad grounds for revocation.
- The Director may withhold or revoke licenses based on numerous broad, discretionary factors affecting the sign’s location and aesthetics.
- Van Wagner Boston, LLC and Van Wagner Communications, LLC (plaintiffs) challenged the scheme under 42 U.S.C. § 1983 as a prior restraint on speech.
- District court dismissed the First Amendment claim for lack of standing and declined supplemental jurisdiction over state-law claims; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs have standing to challenge the licensing scheme | Van Wagner is subject to unbridled discretion harming speech | No cognizable injury since applications were largely granted | Yes; standing established via threat of prior restraint and standardless discretion. |
| Whether unbridled discretion over licensing constitutes injury in fact | Discretion chills speech and creates risk of censorship | Content-blind scheme lacks actionable injury | Yes; scheme plausibly grants unbridled discretion threatening protected expression. |
| Whether City of Lakewood standing doctrine applies to commercial speech | Doctrine applies due to nexus to expression | Not applicable to billboard commerce | Applicable; threats of censorship extend to commercial and noncommercial messages. |
| Whether Massachusetts scheme’s revocation/renewal provisions create similar risks | Revocation power risks retaliation and self-censorship | Grounds for revocation are narrow or limited | Yes; broad revocation authority enhances censorship risk. |
| Remand/reinstatement of state-law claims and abstention issues | District court should reinstate state-law claims | Abstention/Eleventh Amendment issues unresolved | Remand for state-law claims; no opinion on jurisdiction/abstention. |
Key Cases Cited
- City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (U.S. 1988) (facial challenge to uncapped licensing risks from discretionary permits)
- Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) (standing for facial challenges to licensing schemes)
- CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257 (11th Cir. 2006) (unbridled discretion poses risk of censorship)
- Osediacz v. City of Cranston, 414 F.3d 136 (1st Cir. 2005) (standing not required to allege actual permit denial; injury from policy)
- MacDonald v. Safir, 206 F.3d 183 (1st Cir. 2000) (unbridled discretion and risk of censorship grounds standing)
- Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886 (9th Cir. 2007) (recognition of threat posed by discretionary licensing)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (billboard regulation implies expressive nexus)
- Southworth v. Bd. of Regents of the Univ. of Wis. Sys., 307 F.3d 566 (7th Cir. 2002) (speech-regulation impact on expressive activity)